Evidence – testimony, documents, and tangible objects which prove or disprove the existence of an alleged fact

     This page is continued from Court Proceedings >>>> Terms used in Civil and Criminal Proceedings:

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evidence:
n. (14c)

1. Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact <the bloody glove is the key piece of evidence for the prosecution>.

2. A fact that a tribunal considers in reaching a conclusion; a fact that has been admitted into evidence in a trial or hearing. — aka fact in evidence.

3. The collective mass of things, especially testimony and exhibits, presented before a tribunal in a given dispute <the evidence will show that the defendant breached the contract>.

4. The body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding <under the rules of evidence, the witness’s statement is inadmissible hearsay that is not subject to any exception>. — aka (in sense 4) rules of evidence; law of evidence. — evidence, vb. [1]

1. The means by which any matter of fact, the truth of which is submitted to investigation, may be established or disproved.  That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other. Lynch v Rosenberger, 121 Kan 601, 249 P 682, 60 ALR 376.

The law of evidence embraces those rules which determine what testimony is to be admitted or rejected in the trial of a civil action or a criminal prosecution and what weight is to be given to evidence which is admitted. 29 Am J2d Ev § 1. [2]

1. The means by which any matter of fact may be established or disproved.  Such means include testimony, documents, and physical objects.  The law of evidence is made up of rules that determining what evidence is to be admitted or rejected in the trial of a civil action or a criminal prosecution and what weight is to be given to admitted evidence.

verb: To demonstrate; to establish; to reveal; to show; to indicate; to prove. [3]

     Excerpt from James B. Thayer’s Presumptions and the Law of Evidence (1889):

     “Evidence is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact. [4]

     Excerpt from Charles Frederic Chamberlayne’s A Treatise on the Modern Law of Evidence (1911):

     “The ‘rules of evidence’ are such precepts in the general subject of judicial administration as determine the manner in which a designated fact submitted to judicial decision may be proved; whether such a fact may be proved at all; if so, who are competent to prove it and under what conditions. in the aggregate, these rules constitute the ‘law of evidence! [5]

     Excerpt from Corpus Juris Secundum, Evidence (1996):

     “Evidence, broadly defined, is the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain.  Evidence is the demonstration of a fact; it signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other.  In legal acceptation, the term ‘evidence’ includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.  ‘Evidence’ has also been defined to mean any species of proof legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, and the like. [6]

Related Terms:

exhibit – a document, record, or other tangible object formally introduced as evidence in court.

fact – a deed; an act; that which exists and is real and true — which actually took place — not that which might not have occurred.

proof – the effect of evidence; the establishment of a fact by evidence.

  • burden of proof – party’s duty to prove a disputed assertion or charge.

Various Terms pertaining to Evidence:

adminicular evidence (1911) Rare. Corroborating or auxiliary evidence presented for the purpose of explaining or completing other evidence.

admissible evidence (18c) Evidence that is relevant and is of such a character (e. g., not unfairly prejudicial, based on hearsay, or privileged) that the court should receive it. — aka competent evidence; proper evidence; legal evidence.

background evidence (1939) Evidence that, being both relevant and explanatory of noncontroversial events –while not being unfairly prejudicial — is admitted to explain a sequence of events so as to minimize speculation by a fact-finder.  *  Background evidence is often said to “complete the narrative.”

best evidence (17c) Evidence of the highest quality available, as measured by the nature of the case rather than the thing being offered as evidence.  *  The term is usually applied to writings and recordings.  If the original is available, it must be offered rather than a copy or oral rendition. Fed. R. Evid. 1002. — aka primary evidence; original evidence.  See BEST-EVIDENCE RULE.  Cf. secondary evidence.

     Excerpt from 32A C.J.S. Evidence 5 1054, at 417 (1996):

     “In some circumstances, ‘best evidence’ may mean that evidence which is more specific and definite as opposed to that which is merely general and indefinite or descriptive. However, ‘best evidence’ or ‘primary evidence’ is variously defined as that particular means of proof which is indicated by the nature of the fact under investigation as the most natural and satisfactory, or as that kind of proof which under any possible circumstances affords the greatest certainty of the fact in question; or as evidence which carries on its face no indication that better remains behind. [7]

character evidence (1949) Evidence regarding someone’s general personality traits or propensities, of a praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community. Fed. R. Evid. 404, 405, 608.  *  Character evidence is usually, but not always, prohibited if offered to show that the person acted in conformity with that character.  Cf. reputation evidence.

circumstantial evidence (18c) 1. Evidence based on inference and not on personal knowledge or observation. — aka indirect evidence; oblique evidence.  Cf. direct evidence (I).  2. All evidence that is not given by eyewitness testimony.

     Excerpt from Alexander M. Burrill, A Treatise on the Nature, Principles and Rules of Circumstantial Evidence 4 (1868):

     “Indirect evidence (called by the civilians, oblique, and more commonly known as circumstantial evidence) is that which is applied to the principal fact, indirectly, or through the medium of other facts, by establishing certain circumstances or minor facts, already described as evidentiary, from which the principal fact is extracted and gathered by a process of special inference . . . . [8]

     Excerpt from Henry David Thoreau’s Journal, 11 Nov. 1850, in Journal of Henry D. Thoreau (Bradford Torrey & Francis H. Allen eds., 1962):

     “Some circumstantial evidence is very strong, as when you find a trout in the milk.” [9]

     Excerpt from William P. Richardson’s The Law of Evidence (3d ed. 1928):

     “Evidence of some collateral fact, from which the existence or non-existence of some fact in question may be inferred as a probable consequence, is termed circumstantial evidence. [10]

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “Testimonial evidence readily defines itself by its name; it is any assertion by a human being, offered to evidence the truth of the matter asserted.  Circumstantial evidence is any and all other evidence.  Scientifically the term ‘circumstamtial’ is indefensible, for it does not correlate with ‘testimonial’; a more correct equivalent would be ‘nontestimonial.’  But no one has yet invented an acceptable substitute for ‘circumstantial.” [11]

classified evidence – Secret or confidential information that a party seeks to discover or present as evidence.

  • classified information (1950) Data or material that, having been designated as secret or confidential, only a limited number of authorized persons may know about.

clear and convincing evidence (17c) Evidence indicating that the thing to be proved is highly probable or reasonably certain.  *  This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials. — aka clear and convincing proof.  See REASONABLE DOUBT.  Cf. PREPONDERANCE OF THE EVIDENCE.

preponderance of evidence – in civil cases, the party whose evidence is more convincing has a “preponderance of the evidence” on its side and must, as a matter of law, prevail in the lawsuit because it has met its burden of proof.

 

competent evidence – 1. See admissible evidence2. See relevant evidence.

computer-generated evidence (1972) Evidence created by using a computer to provide a recreation, simulation, or reconstruction of an event (usually a crime scene or accident), esp. as it may be used as substantive evidence or as demonstrative evidence.  *  To be introduced as substantive evidence, it must be relevant, sufficiently reliable, and probative to a degree that outweighs the danger of unfair prejudice.  As demonstrative evidence, it need only be helpful to understanding a witness’s testimony and not be based on erroneous or misleading information.   See ACCIDENT RECONSTRUCTION; CRIME SCENE RE-CREATION. — Abbr. CGE.

conclusive evidence (17c) 1. Evidence so strong as to overbear any other evidence to the contrary. —aka conclusive proof2. Evidence that so preponderates as to oblige a fact-finder to come to a certain conclusion.

concomitant evidence (17c) Circumstantial evidence that, at the time of the act, the alleged doer of the act was present and actually did it.

conflicting evidence (1803) Evidence that comes from different sources and is often irreconcilable.

corroborating evidence (17c) Evidence that differs from but strengthens or confirms what other evidence shows (especially that which needs support). — aka corroborative evidence.  Cf. cumulative evidence.

credible evidence (17c) Evidence that is worthy of belief; trustworthy evidence.

critical evidence (18c) Evidence strong enough that its presence could tilt a juror’s mind.  *  Under the Due Process Clause, an indigent criminal defendant is usually eentitled to an expert opinion of the merits of critical evidence. — aka crucial evidence.

cumulative evidence (18c) Additional evidence that supports a fact established by the existing evidence (that which does not need further support).  Cf. corroborating evidence.

demeanor evidence (1909) The behavior and appearance of a witness on the witness stand, to be considered by the fact-finder on the issue of credibility.

demonstrative evidence (17c) Physical evidence that one can see and inspect (i.e. an explanatory aid, such as a chart, map, and some computer simulations) and that, while of probative value and usually offered to clarify testimony, does not play a direct part in the incident in question.  *  This term sometimes overlaps with and is used as a synonym of real evidence. — aka illustrative evidence; autoptic evidence; autoptic proference; real evidence; tangible evidence.  See nonverbal testimony under TESTIMONY.  Cf. real evidence; testimonial evidence.

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “There remains a source of proof, distinct from either circumstantial or testimonial evidence, viz., what the tribunal sees or hears by its own senses.  Whether this should be termed ‘evidence’ or not is a question of words, open to difference of view.  But it is universally conceded to be an available source of proof.  Bentham’s term for it, ‘real evidence,’ came into wide vogue, but is ambiguous.  The term ‘autoptic proference’ (etymologically meaning ‘showing to the tribunal’s own vision’) is preferable. [12]

derivative evidence – (1961) Evidence that is later discovered by using evidence that was illegal] obtained.  * The evidence is inadmissible because of t e primary taint unless it would inevitably have been discovered anyway. See EXCLUSIONARY RULE; FRUIT-OF-THE-POISONOUS-TREE DOCTRINE. Cf. primary evidence (2).

direct evidence (16c) 1. Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption. — aka positive evidence.  Cf. circumstantial evidence; negative evidence.  2. See original evidence (1).

    Excerpt from Charles Frederic Chamberlayne’s A Treatise on the Modern Law of Evidence (1911):

     “As commonly used, direct evidence is the immediate perception of the tribunal or the statement of a witness as to the existence of a constituent fact. [13]

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “A little reflection shows that no disputed case will ordinarily be proved solely by circumstantial or solely by testimonial evidence.  Ordinarily there is evidence of both kinds.  The matter has been obscured by the use of the term ‘direct evidence,’ — a term sometimes used to mean testimonial evidence in general, but sometimes also limited to apply only to testimony directly asserting the fact-in-issue. . . . The term ‘direct’ evidence has no utility. [14]

documentary evidence (18c) Evidence supplied by a writing or other document, which must be authenticated before the evidence is admissible.

downright evidence Rare. A preponderance of evidence.

epidemiological evidence – Evidence based on studies of how a disease is caused, spread, and controlled in a population.

evidence-in-chief (18c) The collective evidence presented during a litigant’s presentation of its case or defense.  See CASE-IN-CHIEF.

exclusive evidence (18c) The only facts that have, or are allowed by law to have, any probative force at all on a particular matter in issue.

    Excerpt from John Salmond’s Jurisprudence (Glanville L. Williams ed., 10th ed. 1947):

     “[T]here is an important class of rules declaring certain facts to be exclusive evidence, none other being admissible.  The execution of a document which requires attestation can be proved in no other way than by the testimony of an attesting witness, unless owing to the death or some other circumstance his testimony is unavailable.  A written contract can generally be proved in no other way than by the production of the writing itself, whenever its production is possible. [15]

exculpatory evidence ( 18c) Evidence tending to establish a criminal defendant’s innocence. Fed. R. Crim. P. 16.  *  The prosecution has a duty to disclose exculpatory evidence in its possession or control when the evidence may be material to the outcome of the case.  See BRADY MATERIAL.

expert evidence (16c) Evidence about a scientific, technical, professional, or other specialized issue given by a person qualified to testify because of familiarity with the subject or special training in the field. — aka expert testimonyFed. R. Evid. 702-705 See DAUBERT TEST.

extrajudicial evidence (18c) Evidence that does not come directly under judicial cognizance but nevertheless constitutes an intermediate link between judicial evidence and the fact requiring proof.  *  It includes all facts that are known to the tribunal only by way of inference from some form of judicial evidence.  See JUDICIAL NOTICE.  Cf. judicial evidence.

extrinsic evidence (17c) 1. Evidence relating to a contract but not appearing on the face of the contract because it comes from other sources, such as statements between the parties or the circumstances surrounding the agreement.  *  Extrinsic evidence is usually not admissible to contradict or add to the terms of an unambiguous document. – aka extraneous evidence; parol evidence; evidence aliunde2. Evidence that is not legitimately before the court.  Cf. intrinsic evidence.  3. Evidence that is calculated to impeach a witness’s credibility, adduced by means other than cross-examination of the witness.  *  The means may include evidence in documents and recordings and the testimony of other witnesses. See Fed. R. Evid. 608(b) & note.

     Excerpt from Paul F. Rothstein’s The Federal Rules of Evidence (3d ed. 2003):

     “Under [Federal Rule of Evidence] 608(b), if the witness denies engaging in untruthful misconduct, the cross-examiner must ‘take the witness’ answer,’ meaning the questioner may not introduce extrinsic evidence to contradict the witness’ denial through other witness testimony or the introduction of impeaching documents, or indeed any other evidence than the cross-examination, even if the questioner waits until it is his turn to put on evidence. [16]

fabricated evidence (18c) False or deceitful evidence that is unlawfully created, usually after the relevant event, in an attempt to achieve or avoid liability or conviction. — aka fabricated fact.

false evidence See false testimony under TESTIMONY.

forensic evidence (18c) Evidence used in court; especially, evidence arrived at by scientific means (as with nuclear or mitochondrial DNA, toxicological and chemical analysis), by interpretation of patterns (as with finger prints, handwriting, etc.), or by a combination of experiential and scientific analysis (as with explosive and fire-debris analysis, blood-spatter analysis). — aka forensic-science evidence.

foundational evidence (1946) Evidence that determines the admissibility of other evidence.

404(b) evidence Evidence of a defendant’s prior bad acts admitted as evidence to prove the defendant’s motive, opportunity, intent, preparation, plan, know]edge, identity, absence of mistake, or lack of accident rather than to establish a proclivity toward bad character.  *  Generally, a prosecutor wishing to use this type of evidence must notify the defendant of that intention before the trial, but a judge may waive that requirement on a showing of good cause. — aka uncharged crimes evidence.

fresh evidence (17c) 1. Evidence that was not available at the time of a trial but merits requiring a new trial.  2. New evidence discovered at any time before or after a trial.  3. Evidence present at the time of an incident or investigation.

habit evidence (1921) Evidence of personal and organizational habits, which may (with or without corroboration) be admissible as a means of proving that conduct conformed to the habit or routine practice. Fed. R. Evid. 406.

hearsay evidence See HEARSAY.

hypnotically refreshed evidence See hypnotically refreshed testimony under TESTIMONY.

identification evidence (1925) An eyewitness’s testimony about the identity of a crime’s perpetrator. — aka eyewitness-identification evidence.

illegally obtained evidence (1924) Evidence obtained by violating a statute or a person’s constitutional or other rights, especially the Fourth Amendment guarantee against unreasonable search and seizure, the Fifth Amendment right to remain silent, or the Sixth Amendment right to counsel.

immaterial evidence (18c) 1. Evidence lacking in probative value.  2. Evidence offered to prove a matter that is not in issue.

impeachment evidence (1861) Evidence used to undermine a witness’s credibility. Fed. R. Evid. 607-610.

incompetent evidence (18c) Evidence that is for any reason inadmissible.

incriminating evidence (1878) Evidence tending to establish guilt or from which a fact-trier can infer guilt.

inculpatory evidence (1849) Evidence showing or tending to show one’s involvement in a crime or wrong.

indispensable evidence (18c) Evidence without which a particular fact cannot be proved.

individualized evidence (1985) Forensic evidence consisting in the matching of a specimen to a particular individual or other source (as with DNA, fingerprints, writing samples, tool marks, bite marks, and specimens such as hair).

insufficient evidence (17c) Evidence that is inadequate to prove or support a finding of something.  *  This term usually describes a case that is not strong enough to even get to the fact-finder.

intrinsic evidence (17c) 1. Evidence brought out by the examination of the witness testifying.  2. Evidence existing within a writing.  Cf. extrinsic evidence (2).

irrelevant evidence (18c) Evidence not tending to prove or disprove a matter in issue. Fed. R. Evid. 401-403. — aka impertinent evidence.  See IRRELEVANT.

judicial evidence (17c) Evidence produced in court, consisting of all facts brought to the attention of or admitted into evidence before the tribunal.  Cf. extrajudicial evidence. .

legal evidence (17c) 1. See admissible evidence2. All admissible evidence, both oral and documentary, of such a character that it reasonably and substantially proves the point rather than merely raising suspicion or conjecture.

lifestyle evidence See LIFESTYLE EVIDENCE.

material evidence (17c) Evidence having some logical connection with the facts of the case or the legal issues presented.  Cf. relevant evidence; immaterial evidence.

mathematical evidence (18c) 1. Loosely, evidence that establishes its conclusions with absolute certainty.  2. Evidence relating to mathematical or statistical matters, or probabilities.

medical evidence (18c) Evidence furnished by a doctor. nurse, or other qualified medical person testifying in a professional capacity as an expert, or by a standard treatise on medicine or surgery.

moral evidence (17c) Loosely, evidence that depends on a belief, rather than complete and absolute proof.  *  Generally, moral evidence is testimonial.

multiple evidence (1926) Evidence with probative or other value on more than one issue but usually admitted into evidence for one specific purpose.  *  Impeachment evidence, for example, may not be probative on a particular issue but may nonetheless affect the jury’s perceptions of several issues.

negative evidence (17c) Evidence suggesting that an alleged fact does not exist, such as a witness’s testifying that he or she did not see an event occur.  *  Negative evidence is generally regarded as weaker than positive evidence because a positive assertion that a witness saw an event is a stronger statement than an assertion that a witness did not see it.  But a negative assertion will sometimes be considered positive evidence, depending on the witness’s opportunity to see the event.  For instance, testimony that the witness watched the entire game and saw no riot in the stands is stronger than testimony stating only that the witness did not see a riot. — aka negative testimony.  Cf. direct evidence (1).

newly discovered evidence (18c) Evidence existing at the time of a motion or trial but then unknown to a party, who, upon later discovering it, may assert it as grounds for reconsideration or a new trial. See Fed. R. Civ. P. 60(b).

no evidence See NO EVIDENCE.

opinion evidence (1955) A witness’s belief, thought, inference, or conclusion concerning a fact or facts. Fed. R. Evid. 702-705.  See OPINION (3); OPINION RULE.

     Excerpt from James B. Thayer’s A Preliminary Treatise on Evidence at the Common Law (1898):

     “In a sense all testimony to matter of fact is opinion evidence; i.e. it is a conclusion formed from phenomena and mental impressions. [17]

original evidence (18c) 1. A witness’s statement that he or she perceived a fact in issue by one of the five senses, or that the witness was in a particular physical or mental state. — aka direct evidence.  Cf. HEARSAY.  2. See best evidence.

parol evidence (18c) 1. Evidence of oral statements.  2. See extrinsic evidence (1). See PAROL EVIDENCE RULE.

     Excerpt from R.S. Dongison Roper’s A Treatise upon the Law of Legacies (1800):

     “The Admission of parol Evidence to explain Doubts or Difficulties arising upon Instruments, has been for a long Time watched over by Courts of Justice with a jealous Eye; it is considered as an unfound Mode of Interpretation, and some of the modern Judges have expressed them selves of Opinion, that Justice would have been better and more fairly administered, if parol Evidence had never been admitted. But as the Province of Judges is merely to dispense the Law as they find it settled, and they have considered themselves bound to admit this Kind of Evidence in certain Cases in which it has been allowed and established by prior Adjudications.  One of the Instances in which such Evidence has been admitted is, in Cases Of wrong or imperfect Descriptions of Legatees, and to ascertain Legatees when their Names have been misspelled, or mistaken. [18]

partial evidence (17c) Evidence that establishes one of a series of facts.

personal evidence See TESTIMONY.

preappointed evidence ( 1850) Evidence prescribed in advance (as by statute) for the proof of certain facts.

preliminary evidence (18c) Evidence that is necessary to begin a hearing or trial and that may be received conditionally in anticipation of other evidence linking it to issues in the case. Fed. R. Evid. 104.

presumptive evidence (17c) 1. Evidence deemed sufficient to establish another fact unless discredited by other evidence.  2. Archaic. Circumstantial evidence as distinct from testimonial evidence. — aka probable evidence.

prima facie evidence (18c) Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “The legislative branch may create an evidential presumption, or a rule of ‘prima facie’ evidence, i.e., a rule which does not shut out evidence, but merely declares that certain conduct shall suffice as evidence until the opponent produces contrary evidence. [19]

primary evidence – 1. See best evidence.  2. Criminal procedure. Evidence directly discovered in a search, as distinguished from derivative evidence later developed from that primary evidence.  *  If the search was illegal, whether the evidence is primary or derivative is part of the analysis for whether it must be excluded as fruit of the poisonous tree or allowed because it would inevitably have been discovered anyway.  See PRIMARY EVIDENCE RULE; INEVITABLE-DISCOVERY RULE.  Cf. derivative evidence.

privileged evidence (1897) Evidence that is exempt from production to an opposing party or tribunal (with certain, limited exceptions) because it is covered by one or more statutory or common-law protections, such as the attorney-client privilege.  See privileged communication under COMMUNICATION.

probative evidence (1877) Evidence that tends to prove or disprove a point in issue.  Cf. relevant evidence.

proffered evidence (1904) 1. Evidence that is offered to the court to obtain a ruling on its admissibility.  2. Evidence whose admissibility depends on the existence or nonexistence of a preliminary fact.

prospectant evidence (1924) Circumstantial evidence existing before someone does an act and suggesting that the person might or might not do the act.  *  This evidence typically falls into any of five categories: (1) moral character or disposition. (2) physical and mental capacity, (3) habit or custom, (4) emotion or motive, and (5) plan, design, or intention.

     Excerpt from Rupert Cross, Evidence 28 (3d ed. 1967):

     “The first section of this chapter illustrates one of the classifications of circumstantial evidence adopted by Wigmore. His division of the subject into ‘prospectant,’ ‘concomitant,’ and ‘retrospectant’ evidence involves the use of strange words, but it has the merit of stressing the main types of argument by which the relevance of one fact to another may be established. [20]

 real evidence (17c) 1. Physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question. — aka physical evidence2. See demonstrative evidence.

     Excerpt from John Salmond’s Jurisprudence (Glanville L. Williams ed., 10th ed.1947):

     “Anything which is believed for any other reason than that someone has said so, is believed on real evidence. [21]

rebuttal evidence (1859) Evidence offered to disprove or contradict the evidence presented by an opposing party.  *  Rebuttal evidence is introduced in the rebutting party’s answering case; it is not adduced, e.g., through cross-examination during the case-in-chief of the party to be rebutted. — aka rebutting evidence.

relevant evidence (18c) Evidence tending to prove or disprove a matter in issue.  *  Relevant evidence is both probative and material and is admissible unless excluded by a specific statute or rule. Fed. R. Evid. 401-403. — aka competent evidence.  Cf. material evidence; probative evidence.

reputation evidence (1888) Evidence of what one is thought by others to be.  *  Reputation evidence may be introduced as proof of character when character is in issue or is used circumstantially. Fed. R. Evid. 405(a). — aka reputational evidence. Cf. char acter evidence.

retrospectant evidence (1929) Circumstantial evidence that, although it occurs after an act has been done, suggests that the alleged doer of the act actually did it <when goods have been stolen, and the thief is sought, a person’s later possession of those goods amounts to retrospectant evidence that this person took them>. — aka traces.  Cf. prospectant evidence.

sufficient evidence – evidence such as will satisfy an unprejudiced mind of the truth of that which the court or jury has found to be the fact– aka satisfactory evidence; satisfactory proof.

scientific evidence (17c) Fact or opinion evidence that purports to draw on specialized knowledge of a science or to rely on scientific principles for its evidentiary value.  See DAUBERT TEST.

secondary evidence ( 17c) Evidence that is inferior to the primary or best evidence and that becomes admissible when the primary or best evidence is lost or inaccessible.  *  Examples include a copy of a lost instrument or testimony regarding a lost instrument’s contents. — aka mediate evidence; mediate testimony; substitutionary evidence.  See Fed. R. Evid. 1004. Cf. best evidence.

secondhand evidence See HEARSAY.

secret evidence (1983) Classified information that may be used against a defendant in an immigration proceeding but withheld from the defendant, the defendant’s lawyer, and the public on national-security grounds.  *  The use of secret evidence was made easier under the Anti-Terrorism and Effective Death Penalty Act of 1996.

 signature evidence (1987) Highly distinctive evidence of a person’s prior bad acts.  *  While ordinarily inadmissible, signature evidence will be admitted if it shows, for example, that two crimes were committed through the same planning, design, scheme, or modus operandi, and in such a way that the prior act and the current act are uniquely identifiable as those of the defendant.  See Fed. R. Evid. 404(b).

slight evidence – (18c) A small quantity of evidence; esp., the small amount of evidence sufficient to remove a presumption from a case or for a rational fact-finder to conclude that something essential has not been established beyond a reasonable doubt.

  • slight evidence rule (1936) 1. The doctrine that if evidence establishes the existence of a conspiracy between at least two other people, the prosecution need only offer slightevidence of a defendant’s knowing participation or intentional involvement in the conspiracy to secure a conviction.  *  This rule was first announced in Tomplain v. U.S., 42 F.2d 202, 203 (5th Cir. 1930).  In the decades after Tomplain, other circuits adopted the rule, but not until the 1970s did the rule become widespread. Since then, the rule has been widely criticized and, in most circuits, abolished.  See, e .g., U.S. v. Durrive, 902 F. 2d 1379, 1380 n. * (7th Cir. 1990)But its vitality remains undiminished in some jurisdictions.  2. The doctrine that only slight evidence of a defendant’s participation in a conspiracy need be offered in order to admit a coconspirator’ s out-of-court statement under the coconspirator exception to the hearsay rule.  See Fed. R. Evid. 801(d)(2)(E).

social-framework evidence (1988) Evidence derived from social-science research to help determine factual issues in a specific case.  *  Examples are testimony about eyewitness inaccuracy based on studies of human memory, the likelihood of a defendant’s being a threat to society in the future based on studies of other individuals convicted of similar crimes and their subsequent behavior, and testimony about battering and its effects.
See W. Laurens Walker and John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 Va. L. Rev. 559, 559-70 (1987). Social-framework evidence has been widely admitted in courts around the country.

state’s evidence (1886) Testimony provided by one criminal defendant — under a promise of immunity or reduced sentence — against another criminal defendant.

  • Queen’s evidence (17c) English law. Testimony provided by one criminal defendant, usu. under a promise of pardon, against another criminal defendant. — aka (when a king reigns) King’s evidence.
  • turn state’s evidence vb. (1846) To cooperate with prosecutors and testify against other criminal defendants <after hours of intense negotiations, the suspect accepted a plea bargain and agreed to turn state’s evidence>.

subsequent-act evidence (1979) Criminal law. Evidence of a criminal defendant’s bad behavior after the alleged commission of an offense, admissible under Federal Rule of Evidence 404(b) if the behavior is relevant to intent, motive, opportunity, identity, or the absence of mistake or accident.

substantial evidence (17c) 1. Evidence that a reasonable mind could accept as adequate to support a conclusion; evidence beyond a scintilla.  See SUBSTANTIAL-EVIDENCE RULE.  2. The product of adequately controlled investigations, including clinical studies, carried out by qualified experts that establish the effectiveness of a drug under FSA regulations. 21 USCA § 355(e).

substantive evidence (18c) Evidence offered to help establish a fact in issue, as opposed to evidence directed to impeach or to support a witness’s credibility.

suspect evidence – (1952) Evidence that is admissible but of a type that may turn out to be incorrect or untrue.  *  For example, evidence given by an accomplice is suspect because the accomplice may want to shift blame to the defendant.

tainted evidence (1876) Evidence that is inadmissible because it was directly or indirectly obtained by illegal means.  See FRUIT-OF-THE-POISONOUS-TREE DOCTRINE.

tainted evidence (1876) Evidence that is inadmissible because it was directly or indirectly obtained by illegal means.  See FRUIT-OF-THE-POISONOUS TREE DOCTRINE,

tangible evidence ( 18c) Physical evidence that is either real or demonstrative.  See demonstrative evidence; real evidence.

testimonial evidence (1831) A person’s testimony offered to prove the truth of the matter asserted; especially evidence elicited from a witness. — aka communicative evidence; oral evidence.  Cf. demonstrative evidence.

     Excerpt from John H. Wigmore’s A Students’ Textbook of the Law of Evidence (1935):

     “An assertion is testimonial evidence whether made out of court or in court, if it is offered with a view to persuading the tribunal of the matter asserted. [22]

traditionary evidence (18c) Evidence derived from a deceased person’s former statements or reputation.  *  Traditionary evidence is admissible to prove ancestry, ancient boundaries, or similar facts, usually when no living witnesses are available to testify.

     Excerpt from Thomas Starkie’s A Practical Treatise on the Law of Evidence (2d Am. ed. 1828):

     “Traditionary evidence as to rights, or declarations as to pedigree, must be derived from those persons who were in a situation to know what the rights were, or, in the latter case, from such as were connected with the family. [23]

unwritten evidence (18c) Evidence given orally. in court or by deposition.

 

evidence code (1877) A relatively comprehensive set of statutory provisions or rules governing the admissibility of evidence at hearings and trials.

evidence of debt See SECURITY (4). evidence of indebtedness. See SECURITY (4).

evidence of insurability (1905) Information such as medical records or a medical examination -that an insurer may require to establish a potential insured’s qualification for a particular insurance policy.

evidence of title (17c) The means by which the ownership of land is satisfactorily demonstrated within a given jurisdiction.  See DEED (2), (3).

     Excerpt from Robert Kratovil’s Real Estate Law (6th ed. 1974):

     “There are four kinds of evidence of title: abstract and opinion, certificate of title, title insurance and Torrens certificate.  The certificate of title is used extensively in the Eastern states, and some Southern states.  In urban centers in a great many sections of the country, title insurance occupies a dominant position in real estate transactions.  In farm areas the abstract and opinion method is common.  To a great extent, the acceptability of a particular kind of evidence of title depends on the local custom. [24]

evidence locker – See PROPERTY ROOM. evidence room. See PROPERTY ROOM.

evidencing feature (1973) Evidence. A group of circumstances that, when taken as a whole, form a composite feature that can be reliably associated with a single object.  *  This term appears more frequently in criminal cases than in civil.  In criminal cases, it usu. refers to evidence that establishes a perpetrator’s identity, but in civil cases it often refers to evidence that an event did or did not occur. — aka evidencing mark; evidential mark.

evidential uncertainty See UNCERTAINTY.

evidentiary adj. (1810) 1. Having the quality of evidence; constituting evidence; evidencing. 2. Of, relating to, or involving the rules of evidence or the evidence in a particular case.

evidentiary error See ERROR (2).

evidentiary privilege See PRIVILEGE (3). [1]

evidence by comparison – Evidence admitted to prove the quality of a thing by comparing one thing with another under such circumstances that the similarity of the subjects of comparison is reasonably sufficient to give the result of the comparison sound probative force. 46 Am J1st Sales § 310 See comparison of handwriting.

evidence in mitigation – Proof of facts tending to show that the conceded or assumed cause of action does not entitle the plaintiff to as large an amount of damages as might otherwise be recoverable. 22 Am J2d Damg § 291.

evidence introduced See introduced evidence.

evidence of debt – Any written instrument for the payment of money.

evidence offered See offered evidence.

evidence of title – A deed or other instrument establishing title to property, particularly real estate.

evident – Plainly seen or understood; manifest; obvious.
     Under a constitutional provision guaranteeing the right to bail except in capital cases when the proof is “evident,” the word has been viewed as meaning manifest. plain. clear. obvious, apparent, and notorious. 8 Am J2d Bail § 50. In a more technical and precise sense, such probative facts as are requisite to prove ultimate facts.  Ultimate facts are the facts which are pleaded and probative and evidentiary facts are those which supply the proof of the ultimate facts. 41 Am J1st Pl § 8.

evidentiary facts – The facts admissible in evidence.

evidently – In an evident manner.  See evident. [2]

evidence aliunde – Evidence from another source or another place; parol evidence; extrinsic evidence.  See aliunde.

evidence in mitigation In a civil action, proof of facts tending to show that the plaintiff is not entitled to the amount of damages that might otherwise be recoverable. See mitigation; mitigation of damages.  In a criminal prosecution, proof of facts tending to show that a convicted defendant’s punishment should not be as severe as it might otherwise be or that the degree of the crime should be reduced.  See mitigating circumstances.

evidence of debt – Any written instrument revealing a monetary obligation. EXAMPLES: a bond; a mortgage; a note.

evidence of insurability – Evidence an insurance company requires before it will issue a life insurance policy. EXAMPLE: a medical examination and report.

evidence of title – A deed or other instrument establishing title to property, particularly real estate.

evidencing – Proving; establishing; demonstrating; showing.

evidential breath test – A scientific device that gives blood alcohol readings. It operates on the principle that blood alcohol in the body is concentrated in a constant ratio to the concentration of blood in the lung.  An EBT is the only type of breath test that is admissible evidence. 
See blood alcohol concentration; breathalyzer; drunk-o-meter.

evidentiary facts – Facts admissible in evidence.
    See probative facts; ultimate facts.

Compare proof.
See admissible evidence.
Also see best evidence; character evidence; circumstantial evidence; competent evidence; corroborating evidence; cumulative evidence; demonstrative evidence; documentary evidence; extrinsic evidence; legal evidence; material evidence; newly discovered evidence; opinion evidence; paol evidence; prima facie evidence; rebuttal evidence; relevant evidence; rules of evidence; secondary evidence; state’s evidence. [3]

References:

Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: James B. Thayer, Presumptions and the Law of Evidence, 3 Harv. L. Rev. 141, 142 (1889).

[5]: 1 Charles Frederic Chamberlayne, A Treatise on the Modern Law of Evidence 5 2, at 4 (1911).

[6]: Corpus Juris Secundum, Evidence (1996).

[7]: 32A C.J.S. Evidence 5 1054, at 417 (1996).

[8]: Alexander M. Burrill, A Treatise on the Nature, Principles and Rules of Circumstantial Evidence 4 (1868).

[9]: Henry David Thoreau, Journal, 11 Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford Torrey & Francis H. Allen eds., 1962).

[10]: William P. Richardson, The Law of Evidence 5 111, at 68 (3d ed. 1928).

[11]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 38 (1935).

[12]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 39 (1935).

[13]: 1 Charles Frederic Chamberlayne, A Treatise on the Modern Law of Evidence 5,15, at 16 (1911).

[14]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 40 (1935).

[15]: John Salmond, Jurisprudence 485 (Glanville L. Williams ed., 10th ed. 1947).

[16]: Paul F. Rothstein, The Federal Rules of Evidence 312 (3d ed. 2003).

[17]: James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 524 (1898).

[18]: R.S. Dongison Roper, A Treatise upon the Law of Legacies 21 (1800).

[19]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 237 (1935).

[20]: Rupert Cross, Evidence 28 (3d ed. 1967).

[21]: John Salmond, Jurisprudence 480 (Glanville L. Williams ed., 10th ed.1947).

[22]: John H. Wigmore, A Students’ Textbook of the Law of Evidence 120 (1935).

[23]: 1 Thomas Starkie, A Practical Treatise on the Law of Evidence 62 (2d Am. ed. 1828).

[24]: Robert Kratovil, Real Estate Law 170 (6th ed. 1974).

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